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Porter v. United States.

United States District Court, D. New Hampshire

December 22, 2015

Peter Porter,
v.
United States of America.

ORDER Opinion No. 2015 DNH 234.

LANDYA McCAFFERTY, District Judge.

On July 9, 2010, Peter Porter was injured at the United States Post Office in Claremont, New Hampshire, when a loading dock ramp unexpectedly struck him in the back. Porter has brought suit against the United States of America, alleging a claim of negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 2671 et seq.

The court held a three-day bench trial in November 2015. After considering the trial testimony and the record evidence, the court concludes that the government was not negligent in maintaining the ramps. The court further concludes that, even if the government were negligent, Porter was also negligent in failing to exercise due care, and that Porter's negligence exceeded any negligence on the part of the government. The court's findings of fact and rulings of law are set forth below. See Fed.R.Civ.P. 52(a).

Findings of Fact

The court found Porter to be a credible witness. His testimony about the accident, how it occurred, and his injuries thereafter was consistent and believable. As a result, the court's findings of fact are drawn almost exclusively from Porter's testimony, except where necessary for background information or to clarify certain facts.

Peter Porter began working for Mowers News Service ("Mowers") as a delivery driver in April 2010. Mowers is a contractor that delivers mail between postal facilities in northern New Hampshire and Vermont. Mowers assigned Porter to three delivery routes, each of which involved stops at several postal facilities. As was customary at Mowers, Porter was trained by experienced Mowers drivers. A different driver trained Porter for each route. Porter had been working for Mowers for approximately three months when, on July 9, 2010, he was struck by a loading dock ramp while delivering mail to the Claremont, New Hampshire, Post Office.

A. Claremont Post Office

The loading dock at the Claremont Post Office is a large, concrete platform that is approximately 32 or 33 inches high. The loading dock is used by delivery drivers, who back their delivery trucks to the front of the dock and load and unload postal containers from it. Two yellow bumpers, as far apart as the width of a typical delivery truck and taller than the loading dock, sit on the ground just in front of the dock. The bumpers are designed to prevent the delivery truck from backing into the loading dock during a delivery. When a truck is backed up to the bumpers during a delivery, there is somewhere between one and two feet between the loading dock and the back of the truck.[1]

The loading dock has a built-in hydraulic lift designed to be raised or lowered to meet the level of whatever truck is being loaded or unloaded. The lift has handrails on both the right and left sides.

Two ramps are attached to the front of the lift. Each ramp is about three feet long and three feet wide and weighs between 80 and 100 pounds. The ramps are upright when not in use and lowered into position during loading. The ramps are designed to be raised and lowered independently, but they are attached to the same axle. In other words, when working properly, a driver can lower one of the ramps without the other ramp moving.

The ramps are used to form a bridge between the lift and the truck so that drivers can move postal containers off the truck and onto the dock, and vice versa. The ramps can be raised and lowered to rest against the bed of the delivery truck by using "snap chains, " which are metal chains attached to the lift handrails on one end and the ramps on the other end. The snap chains can be slotted into hooks on the handrails, which lock the ramps in place. Even without being locked in place, however, the ramps are not designed to fall over absent a driver making an effort to lower them. While in the upright position, the ramps rest at a slight angle toward the lift and away from the front of the dock, so that the ramps will not fall forward on their own.

B. Porter's Training for the Claremont Post Office

George Sunn, an experienced Mowers driver, trained Porter on the delivery procedure for the Claremont Post Office. The training consisted of Porter observing Sunn go through the normal delivery procedures for one delivery. Porter described his training as "monkey see, monkey do." Based on his observation of Sunn, Porter created a checklist.

During the training, Sunn backed up the truck to the yellow bumpers in front of the loading dock. Sunn next got out of the truck, went around to the back, and opened the door. Sunn showed Porter how to raise and lower the loading dock lift, how to raise and lower the ramps by using the snap chains, and how to transfer postal containers to and from his delivery truck using the lowered ramps as a bridge. Sunn did not explicitly tell Porter that the ramps should be lowered using the snap chains while standing behind the ramps on the lift. Nor did Sunn explicitly tell Porter not to lower the ramps while standing in front of them.

During Porter's experience making deliveries for Mowers prior to July 9, 2010, he observed drivers use different techniques for raising and lowering the ramps at the various postal facilities. Some, like Sunn, raised and lowered the ramps using the snap chains. Other drivers would stand on the lift and kick the ramps to knock them over, or ram a postal container into both ramps to knock them over at the same time. The latter techniques were used most often by Porter and other drivers at facilities where the snap chains were broken. Under those circumstances, Porter and other drivers would raise the ramps at the end of the delivery by standing on the ground and pushing the ramps back into the upright position.

At no point during Porter's training or experience as a Mowers driver did he observe anyone attempt to lower one or both of the ramps at any facility while standing in front of one of the ramps or while standing on the ground. During Porter's training and experience as a Mowers driver, Porter observed every other driver lower the ramps, in some manner, while standing behind the ramps on the lift. No witness testified that he or she had ever seen or heard of any delivery driver lowering a ramp from the ground.

C. Issues with the Ramps at the Claremont Post Office

For the most part, deliveries at the Claremont Post Office, of which there were about six to eight a day, occurred without incident, and the ramps at the post office worked as intended. About three or four times a year, however, drivers would complain to a post office employee that the ramps were "rough, " in that they could not be raised or lowered easily. The roughness was generally caused either by cold weather or by gravel or debris getting stuck in the axle. The roughness of the ramps was usually resolved by a driver applying WD-40 to the ramp axles. A can of WD-40 was left on the loading dock for that purpose.

The Claremont Post Office used the United States Postal Service maintenance department in Manchester, New Hampshire to maintain its equipment. From at least the fall of 2009 through July 9, 2010, no one at the ...


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